Bail Act 2013 Decisions in the Supreme Court of NSW
The Bail Act 2013 (the Act) commenced on 20 May 2014. It abandoned the presumption based system of the Bail Act 1978 and introduced a new risk management approach to the determination of bail.
This paper considers Supreme Court determinations of note since 20 May that provide guidance as to the application of the new Act.
1. R v Lago [2014] NSWSC 660
Onus of proof on prosecution s 20 - assessment of unacceptable risk
s 17 - grant of bail not risk free - limitations on imposition of security requirements s 26(5) - limitations on police checks on curfew s 81 – presumption of innocence s 3(2) – length of time in custody s 17(3)(g)
Mr Lago was charged with serious offences relating to firearms and a home invasion.
Whilst Hamill J stated that he was "not sure" that the first step of determining unacceptable risk alone (as required by s 17) placed the onus on the prosecution, he noted in relation to the second step:
"Section 20 is a critical provision and it provides that bail can only be refused where the Court is satisfied that any unacceptable risk "cannot be sufficiently mitigated by the imposition of bail conditions". It can be seen that this provision casts the onus on the party who is opposed to the grant of bail. Again the standard is on the balance of probabilities."[7]
In relation to the assessment of unacceptable risk, His Honour stated:
"The concept of assessing risk of this kind has been considered in a number of cases in the context of legislation relating to bail in other states...see for example Williamson v DPP (2001) 1 Qd R 99; Dale v DPP [2009] VSCA 212; Woods v DPP [2014] VSC 1....
...The cases on bail recognise that "no grant of bail is risk free": see Williamson (supra) at [22]; Dale (supra) at [58]. In the Application of Haidy [2004] VSC 247, a decision under the Victorian bail legislation, Redlich J said:
"Bail when granted is not risk free. Williamson v DPP (QLD). As the offender's liberty is at stake, a tenuous suspicion or fear of the worst possibility if the offender is released will not be sufficient. Dunstan v DPP; Williamson v DPP (Qld).""[8]-[9]
His Honour commented on the interaction between the presumption of innocence and the length of time a person would be required to remain in custody as follows:
"The Act does no violence to the presumption of innocence or to the ultimate requirement of proof beyond reasonable doubt before the State can punish one of its citizens. Further the length of time that a person is required to remain in custody is specifically required to be taken into account in assessing whether there are or are not unacceptable risks: s 17(3)(g). The following words of Sperling J in Cain (No 1) (2001) 121 A Crim R 365 at 367 continue to resonate when a bail authority is dealing with a release application where there is expected to be a lengthy delay:
"As to the interests of the applicant, he has a legitimate claim to be at liberty to go about a lawful life and to be with his family pending trial. He has been in custody for over a year. I am told by the Crown that the present charges might not come to trial for a further year. The prospect that a private citizen who has not been convicted of any offence might be imprisoned for as long as two years pending trial is, absent exceptional circumstances, not consistent with modern concepts of civil rights"
.....My assessment is that the applicant will be required, if refused bail, to spend at least one year in custody enjoying, as it were, the presumption of innocence."[13] and [22]
His Honour found that there was an unacceptable risk of the commission of a serious offence and to the safety of the witnesses and the victim on the basis of the serious and violent nature of the alleged offending and the applicant's possession of a gun (it was accepted by the prosecution and the court that this gun was not the one involved in the home invasion).
His Honour found that these risks could be mitigated by a combination of conduct requirements (s 25) and enforcement requirements (s 30). The enforcement condition related to a curfew and was made in terms that required the police to act on the curfew check only where they believed on reasonable grounds that it was necessary to do so, having regard to the rights of the other occupants of the premises to peace and privacy.
In relation to security requirements, His Honour noted the following:
"I do not impose any security requirements because I am prohibited from doing so under the terms of the legislation, unless I am of the view that he poses an unacceptable risk of non-appearance: s 26(5). I am not of the view that the applicant is an unacceptable risk of non-attendance. I record my opinion that this is something of a problem in the legislation."[28]
What to do if the police aggressively enforce a curfew
It has been reported since the commencement of the new Act that some police have been overzealous in their enforcement of curfew conditions. If this happens to one of your clients, it is suggested that a letter to the Local Area Commander (LAC) may assist by setting out s 81 regarding the giving of directions under enforcement conditions. Section 81 provides that a police officer may give a direction of a kind specified in the enforcement condition either in the circumstances specified by the court in the condition or if the officer has reasonable suspicion that the accused has breached the curfew condition. The letter could also set out your intention to make a variation application to delete the curfew condition, if the persistent and unwarranted curfew checks continued. In particular, s 30(5) requires a court to consider the unreasonable affect on others when imposing a enforcement condition. A copy of a letter sent to the relevant LAC on behalf of a client is attached as an example at Annexure "A".
2. R v Alexandridis [2014] NSWSC 662
Onus of proof on prosecution s 20 - assessment of unacceptable risk
s 17 - grant of bail not risk free – evidence must be credible or trustworthy s 31(1)
Mr Alexandridis was charged with threatening a person with intent to influence a witness.
Hamill J made a number of helpful statements with regard to the onus of proof being on the prosecution by virtue of s 20, the determination of unacceptable risk under s 17 and the presumption of innocence as set out in s 3(2). The statements are similar to those set out in R v Lago (above at 1) and will not be set out again here.
His Honour made some additional comments with regard to the admissibility of evidence in bail applications that is worth noting. Section 31(1) of the Act provides that the rules of evidence do not apply, but that the court may take into account any evidence that it considers is "credible or trustworthy".
Objection was taken to part of a letter prepared by the Officer in Charge in relation to the application for bail, on the grounds that there was no evidence to support a particular assertion made. Similar material appeared in the police facts sheet. His Honour noted at this stage of the proceedings that the prosecution case appeared "gossamer thin" based on the material in the facts sheet.
After a short adjournment, the prosecution then provided a CD of an ERISP of an alleged associate of the applicant in support of the assertion. A synopsis of this material was prepared by the applicant's solicitor and tendered. His Honour determined the evidence to be "credible or trustworthy" for the purposes of s 31(1). It can be inferred that His Honour would have rejected the admission of the asserted evidence, if the material had not been so provided.
Reference to this case may assist practitioners in any arguments disputing unsubstantiated assertions in police facts sheets and other prosecution material tendered on bail.
3. R v Morris (SCNSW, Unreported, McCallum J, 20 May 2014)
Aboriginality – Bugmy/Fernando type deprivation - special vulnerability s 17(3)(j) – weight of consideration of presumption of innocence and right to liberty reinforced by virtue of special vulnerability s 3(2) – short period of adjournment mitigates risk of number of offences likely to be committed s 17(4)
Ms Morris was charged with one larceny offence and had been in custody for 2 months at the time of her bail application before the Supreme Court. The matter was listed for defended hearing 2 weeks after the date of the bail application. The facts sheet squarely raised the issue of Ms Morris having acted under duress, but was otherwise a strong prosecution case.
Ms Morris came from a background of severe deprivation including her subjection to violence, sexual abuse and movement between family and foster parents. In addition, her mother was murdered when she was a teenager and she suffered from depression together with a number of physical and mental conditions. Her background clearly placed her within the ambit of the principles set out in the cases of Bugmy v R (2013) 302 ALR 192 and R v Fernando [2002] NSWCCA 28. McCallum J found that her background was relevant as placing her in the category of a person with special vulnerability under the new Act: s 17(3)(j).
In relation to the interaction between the presumption of innocence and special vulnerability, Her Honour stated as follows:
"In determining the application, I am required to have regard to the presumption of innocence and the general right to be at liberty: s 3 of the Act. The weight of that consideration is reinforced in the present case by relevant evidence of the applicant's background which, in my assessment, plainly places her in the category of a person with special vulnerability: cf s 17(3)(j) of the Act."(p.1: emphasis added)
In relation to the assessment of unacceptable risk of committing a serious offence, Her Honour found, by virtue of her criminal history, that there was a strong likelihood that any offence committed would be a relatively minor offence of shoplifting. Turning to s 17(4) and the requirement to consider the number of offences likely to be committed as a discrete aspect of the seriousness of the offending, Her Honour stated:
"Whilst a lengthy period of remand might raise a concern in that regard, in the present case the short period of the remand until the hearing at Tamworth Local Court induces me to the conclusion that I could not assess the risk of a substantial number of offences being committed of the kind to which I have referred between now and that time as being an unacceptable risk of serious offending.
In all the circumstances, I am not persuaded on the balance of probability that there is an unacceptable risk of the applicant committing a serious offence in the sense in which that term is defined in the Act between now and the date of the hearing."(p.3)
It can be seen that Her Honour didn't go so far as to say that a risk of committing a number of minor offences like shoplifting would not constitute an unacceptable risk of committing a serious offence as defined under s 17(4). However, if the risk of reoffending is of a relatively minor nature and the remand period is short, then the risk of committing a serious offence is not unacceptable.
This judgment may be of assistance when faced with the argument that bail ought be refused as the substantive matter is listed within a short period. That is, it could be argued that the short adjournment period in fact strengthens the argument in favour of the grant of bail, as there is a very small period of time in which offences could be committed, thereby mitigating the risk of committing a serious offence in the relevant remand period.
4. R v SK & DK (SCNSW, Unreported, McCallum J, 20 May 2014)
Children – special vulnerability s 17(3)(j) – balance of risk between special vulnerability and risk to community as a result of vulnerability – grant of bail not risk free
SK and DK were 15 year old twin brothers from a background of extreme disadvantage. They had been taken into care when they were infants due to domestic violence and substance abuse in the parental home. They had been fostered at various placements until they went to an uncle and aunt where they were further physically and emotionally abused. Prior to arrest they had been residing with their sister at a facility run by the Uniting Church. Whilst they were in custody bail refused their sister had died apparently due to a drug overdose.
McCallum J accepted that there was clearly an unacceptable risk of committing a serious offence, as well as to the safety of the victim or individuals or community. The "more difficult task" in Her Honour's view was whether the risks identified could be sufficiently mitigated by the imposition of conditions. In this consideration, Her Honour noted that:
"Section 17 of the Bail Act makes it plain that Parliament intended that the assessment be very much focused on the individual circumstances of each case coming before the court and, further, that the assessment be informed not only by considerations of the protection of the community but also by considerations relating to the circumstances of the applicant.
That is made plain by the inclusion of s 17(3)(j), which requires the court in assessing whether there is "unacceptable risk" to have regard to any special vulnerability of the accused person."(p.3)
However, Her Honour noted that the considerations of special vulnerability and protection of the community were sometimes difficult to reconcile in the assessment of unacceptable risk:
"Those considerations lead to competing conclusions. On the one hand, they might be regarded as factors exacerbating the risk of offending; on the other they highlight the acute needs for these boys to fall under the care of a considered and carefully planned proposal to meet their future needs which will mitigate against the risk of their reoffending."(p.3)